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Polygamy - my "quick and dirty" reaction

Wednesday, November 23, 2011

This reference is over 1300 paragraphs (300+ pages) and requires sustained engagement. But as I've spent the majority of the afternoon wading through it, I thought I would do a brief blog post.

Basically, I find the decision very disappointing. I think the judge's use of "Western civilization and its values" as a benchmark for criminal law is highly problematic. I find it shocking that he could possibly conclude that the intent behind the criminalization of polygamy in 1892 was anything other than discriminatory and bigoted. The idea that it has always been motivated by concern for harm to women and children is... risible. Quick reality check - marital rape was not a crime in 1892 (indeed, it was not addressed until 1983). Yet we're supposed to accept such a benevolent purpose?

With respect to the religious freedom argument, I have always maintained that religious freedom cannot ground an exemption to an otherwise valid criminal law. But this criminal law is not valid. Justice Bauman accepts that polygamy is constitutive of "unique" harms that are somehow separate from other intimate relationships, and these harms are experienced profoundly by women and children. Yet, he admits that "polygamy" includes both polygyny and polyandry, and he rejects the idea that proof of harm is required!

The harms of polygamy are the harms of patriarchy. The fact that we are somehow only concerned about those harms insofar as they exist in plural relationships tells us all we need to know about whether the criminal prohibition is principled and justified.

So, on the whole, a very bad result...and the copious (and wrong-headed) findings of fact will make fair appellate review very challenging.